SHAMAJI NARAYAN Vs. GOVIND RANGACHARYA

JUDGEMENT

(1.) The subject-matter of this litigation is agricultural land being six survey numbers, one in village Agarkhed in the Bijapur District, one in village Nandgaon in the Belgaum District, three in village Satti also in the Belgaum District, and one in village Kupwad in the Dharwar District. Although in the view we take this litigation falls to be decided upon a comparatively narrow point, a description of the complicated facts and history is necessary. We are indebted to Mr. Coyajee, who has argued the appeal for the appellant-plaintiff, for the very clear manner in which the facts and history have been placed before us. It is not now disputed that the six suit lands, which we understand are at inam lands, certain other lands in British India, lands in Mudhol and Jamkhandi States, and inam villages in Mysore State were the ancestral property of one Vasudevacharya, who died some time before 1853 A. D. The family tree of the descendants of Vasudevacharya is as follows:

(2.) Whether there was partition between the branches of Kristacharya and Hayagriva is one of the matters in dispute in the present litigation. The present plaintiff is Shamaji, the son of one Narayan or Naro Gopal Kulkarni of Satti village who was the clerk or agent of the family of one Girimallappa, whose heirs are defendants 5, 6 and 7. In the year 1891 Hayagriva purported to sell to Girimallappa the three Satti survey numbers and certain other lands not now in suit. According to the plaintiff this sale was benami for the benefit of Naro Kulkarni. In the year 1898 three Suits NOS. 494, 495 and 496 of that year, were instituted by Shivappa, the brother of Girimallappa (then deceased) in the Court of the Second Class Subordinate Judge, Athni, on the sale deed of 1891, seeking possession of the lands conveyed. The defendants in the suits were Giribai, Naro Kulkarni and certain tenants. Naro was joined as a sub-mortgagee from "Venkubai, and it was averred by Shivappa that in the year 1895 Giribai had obtained a decree for possession against Naro. Naro did not appear in the 1898 suits. The contentions of Giribai were that Hayagriva had no right to sell as he had separated from his grandfather Vasudevacharya and had been given separate property in Mysore State, that the suit property had come to Kristacharya, and that after his death to Giribai. The trial Court found that Guraeharya died separate from his father, and on Vasudevacharya's death his estate including the suit lands was enjoyed by Kristacharya, and after Kristacharya's death by Giribai, and that Giribai was "in adverse possession in her own proprietary right" for more than twelve years before the suits were filed. The trial Court dismissed the suits accordingly. Appeals were preferred by Shivappa to the District Court, and the judgment of Mr. Gloster, District Judge (Ex. 101) shows that Suit No. 494 related to land at Sanadi which is not now in suit, while Suits Nos. 495 and 496 related to the Satti lands in suit. The District Judge held on the evidence that no partition had taken place in the family of Vasudevacharya, but that the three Satti lands had been held adversely by Giribai for more than twelve years. He therefore dismissed the appeals relating to the Satti lands, but allowed Shivappa a decree for possession of the Sanadi land. A second appeal to this Court was dismissed.

(3.) On 7 April 1915, Hayagriva executed a sale deed in favour of Naro Kulkarni purporting to convey all the six lands now in suit for a consideration of Bs. 1500, of which Bs. 1000 was stated to be paid. The deed (Ex. III) "recites that the lands were in the possession of Giribai "for the purpose of potgi (maintenance), etc." and Hayagriva undertook to make separate arrangements for her potgi, and to obtain and deliver possession to Naro Kulkarni, when the balance of Bs. 500 was to be paid. The document proceeds: In case I do not do as said above, you are to take possession of the said lands after the death of the said Giribai... In case the said lands come to your possession after the death of Giribai, the 500 rupees are not to be paid.